Settlement of Disputes at

ICAO and Sustainable

Development
by

Mathieu Vaugeois
 Occasional Paper Series:
Sustainable International Civil Aviation
The attached Occasional Papers have been prepared by a group of scholars associated
with the Institute of Air and Space Law (IASL) at McGill University. They are the
result of a collaborative effort between the IASL and the Centre for International
Sustainable Development Law and are designed to be part of a book prepared by
authors from both groups which will eventually be published by the Cambridge
University Press under the title Sustainable International Civil Aviation.

As the title of the book suggests, bringing together these various scholars and papers
is the central theme of the sustainable development of international aviation. In
particular, the work of the International Civil Aviation Organization (ICAO), the
primary United Nations body tasked with regulating the environmental aspects of
international aviation, and the provisions of the Chicago Convention which lays down
powers of the Organization and the fundamental rules of international air law, form
the primary focus of this collection. At the next ICAO Assembly in September-October
of 2016, ICAO has the ambitious mandate to finalise a global scheme to limit CO2
emissions from international aviation. As many of the articles contained in the book
are of immediate relevance to the discussions due to take place at ICAO, publishing
and disseminating these draft chapters will contribute to the growing interest and
debates on the issue of the environmental impact of aviation. It is hoped that these
papers will contribute to the work of the Assembly and that informed readers and
delegates participating at the ICAO Assembly will have constructive comments to
share with the authors.

Readers are invited to send their comments to the authors whose e-mail addresses are
set out on the title page of each paper as well as a copy to the following address:
edannals.law@mcgill.ca

The authors and the Editors of this collection of papers thank all readers for their
attention and their comments.

Professor Armand de Mestral, Emeritus Professor, McGill University, Canada

Dr. Paul Fitzgerald, McGill University, Canada
Dr. Tanveer Ahmad, North South University, Bangladesh
 SUMMARY

Settling a dispute involving an issue on Sustainable Development before the ICAO: How will the ICAO
resolve the dispute?

The issue:
 Whether the mechanism and procedure for the settlement of disputes within the Chicago
Convention could be adapted to address a potential dispute dealing with issues of
sustainable development and environmental protection, should there be a failure to
implement a global Market-Based Measure further to the 39th ICAO Assembly.
 If yes, how will the ICAO resolve the dispute?

Its importance:

 Any measure comparable to the EU’s unilateral implementation of an Emissions Trading

Scheme would most likely be challenged by States in all fora, possibly including a dispute
before the ICAO.
 ICAO has jurisdiction to settle legal disputes pertaining to the interpretation and the
application of the Chicago Convention.
 Any dispute has to be cast as an alleged violation of the Chicago Convention or other binding
treaty.
 Environmental protection is one of the five strategic objectives of ICAO.

The treaty law:

 Article 84 of the Chicago Convention:

Settlement of disputes
If any disagreement between two or more contracting States relating to the interpretation
or application of this Convention and its Annexes cannot be settled by negotiation, it shall,
on the application of any State concerned in the disagreement, be decided by the Council.
No member of the Council shall vote in the consideration by the Council of any dispute to
which it is a party [...]

The analysis:

 ICAO has jurisdiction over a potential dispute with respect to the implementation of a
renewed EU ETS were such a measure to be reintroduced as it arguably involves
interpretation and application of the Chicago Convention.
 ICAO will most likely consider the principles of Sustainable Development as
environmental protection is one of its strategic objectives.
 The dispute will have to be filed individually against the Member States of the EU as the
Union as a whole is not a party to the Chicago Convention. This was illustrated in the Hushkit
dispute between the US and the EU.
 Similar to the Hushkit case, the ICAO will most likely seek conciliation and mediation
rather than adjudication.
 Serious procedural difficulties can be envisaged. The EU States will have to withdraw from
Council deliberations and may well claim that all non EU Member States members of
Council flying to and from EU are indirectly party to the dispute and are not entitled to
vote. Nonetheless, since there is no provisions exist in the Chicago Convention with respect
to the impartiality of States, this will not be a successful claim.
Options for decision-makers:

1) ICAO to settle the potential dispute through mediation and conciliation, which has
been a success for all the disputes brought before it.

2) ICAO to settle the potential dispute through adjudication. However, the decision will
be based on political grounds.

3) ICAO to dismiss the dispute on jurisdictional grounds.

 SETTLEMENT OF DISPUTES AT ICAO
AND SUSTAINABLE DEVELOPMENT

by

Mathieu Vaugeois1 under the direction of Armand de Mestral 2

ABSTRACT

This article aims to present the dispute settlement mechanism established

in Chapter XVIII of the Chicago Convention. To this end, the article will analyze
how the Council could resolve a potential dispute in the field of sustainable
development. For this exercise, a hypothetical case will be analysed, in which the
European Union (EU) decides to unilaterally implement its emissions trading
scheme in the field of aviation. This case will serve as a potential scenario to
consider if the dispute settlement mechanism set out at Article 84 of the Chicago
Convention could be efficient in order to resolve such a dispute. The said dispute
settlement mechanism has been criticized many times in ICAO’s history due inter
alia to the incapacity of the Council to provide for a merit-based decision. In fact,
the five disputes brought under the present article have always been resolved
through diplomatic channels, involving the good offices of the President of the
ICAO Council. Therefore, despite the peculiarity of the EU representation at
ICAO, the article will demonstrate that a potential dispute with respect to
sustainable development will most likely be resolved the same way that it has
been done previously in ICAO’s history.

I. INTRODUCTION

T
his chapter seeks to determine whether the mechanism and the procedure
for the settlement of disputes within the Chicago Convention 3 could be
adapted to address a potential dispute dealing with issues of sustainable
development and environmental protection, if ICAO’s Member States are not
able to implement a global Market Based Measures (MBM) further to the 39th
Session of the Assembly. For this purpose, we consider a potential scenario
under which the European Union (EU) decides to establish unilaterally its
1 Member of the Quebec Bar and holds a Master in Air & Space Law LL.M. from McGill
University.
2 Emeritus Professor, Jean Monnet Professor of Law at McGill University.
3 Convention on International Civil Aviation, 7 December 1944, 15 UNTS 295, 61 Stat 1180.

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 SETTLEMENT OF DISPUTES AT ICAO AND SUSTAINABLE DEVELOPMENT

Emission Trading Scheme (ETS) as of 1 January 2017 following the failure by the
ICAO Assembly to reach an agreement. Such scenario is at present hypothetical.
Nevertheless, it may serve as a framework in order to demonstrate how the
Chicago Convention might potentially allow for the resolution of such a dispute.

Therefore, this article examines the provisions of the Chicago Convention

with respect to the settlement of disputes, the procedures currently in force
regarding the presentation of an application before the Council, the scope of the
jurisdiction of the ICAO Council for the settlement of disputes, as well as the
previous cases brought before the Council. Also, this chapter considers the type
of legal proceedings certain States could initiate against the EU in relation with
the scenario mentioned above. Moreover, the ambiguous status of the EU at
ICAO may well lead to uncertainty with respect to the parties involved in a
potential application.

II. CHICAGO CONVENTION PROVISIONS FOR THE

SETTLEMENT OF DISPUTES

The dispute settlement provisions are set out in Chapter XVIII (Articles 84
to 88) of the Chicago Convention. 4 Article 84 provides that if any disagreement
between two or more contracting States relating to the interpretation or
application of this Convention and its Annexes it shall, on the application of any
State concerned in the disagreement, be decided by the Council. This provision
also stipulates that no member of the Council shall vote in the consideration by
the Council of any dispute to which it is a party. A party to a dispute can appeal
to the International Court of Justice (ICJ) a decision taken by the ICAO Council.
Article 85 provides for the situation that a State party to a dispute which wishes
to appeal a decision of the Council is not a party to the ICJ Statute. 5 Currently,
this provision seems to be no longer relevant since all 191 ICAO Member States
are also members of the United Nations and therefore parties to the UN Charter
and have accepted de facto the Statute of the ICJ. 6 Moreover, Article 86 stipulates
that any decision of the Council on whether an international airline is operating
in conformity with the provisions of the Chicago Convention shall remain in

4 On the subject of dispute settlement under Chapter XVIII of the Chicago Convention see : Bin
Cheng, The Law of International Air Transport (London: Stevens, 1962) at 101 ff; Thomas
Buergenthal, Law Making in the International Civil Aviation Organization (New York: Syracuse
University Press, 1969) at 123 ff; Michael Milde, International Air Law and ICAO, 2e ed (The
Hague: eleven international publishing, 2012) at 194 ff; Paul Stephen Dempsey, Public
International Air Law (Montreal: Institute and Center for Research in Air & Space Law McGill
University, 2008) at 700 ff; René H Mankiewicz, “Pouvoir judiciaire du Conseil et réglement pour
la solution des différends” (1957) 3 AFDI 383 and R C Hingorani, “Dispute Settlement in
International Civil Aviation” (1959) 14 Arb J 14.
5 Nicolas Mateesco-Matte, Traité de droit aérien-aéronautique, 2nd ed (Paris : A Pedone, 1964) at
221-22.
6 Milde, supra note 4 at 194.

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 OCCASIONAL PAPER SERIES IV

effect unless reversed on appeal and that the decisions of the Council, if
appealed, shall be suspended until the appeal is decided. The decisions of the ICJ
or an arbitral tribunal shall be final and binding.

In order to ensure compliance with decisions under Chapter XVIII, the

Chicago Convention sets out two distinct types of sanctions: one for individual
airlines and the other for States. The first is set out by Article 87 which provides
that each contracting State undertakes not to allow the operation of an airline of a
contracting State through the airspace if the Council has decided that the airline
concerned is not conforming to a final decision rendered in accordance with
Article 86. With respect to the sanction for States, Article 88 stipulates that the
ICAO Assembly shall suspend the voting rights in the Assembly and in the
Council of any contracting State that is found in default under the provision of
this chapter. These sanctions have encountered a certain number of critics over
the years. For example, Professor Milde has pointed out that in order to enforce
the sanction of Article 88, a majority of States of the Assembly have to be in favor
of such measure and would be “undoubtedly motivated by many policy
considerations”. 7

III. THE RULES OF PROCEDURES FOR THE SETTLEMENT

OF DIFFERENCES

The provisions of the Chicago Convention with respect to disputes are

supplemented by the Rules of Procedure for the Settlement of Differences 8 (the Rules)
adopted by the Council. These Rules set out the procedures for a State to
introduce an application to the Council. Under these Rules, the Council functions
as a judicial body. The Council takes its decisions on the basis of the submission
of written documents by the parties (memorials and counter memorials) as well
as on the basis of oral hearings. Another important aspect of the Rules is the
importance given to mediation and conciliation either before or during the
proceedings. 9 For instance, it is provided at Article 14 of the Rules that any
contracting State submitting a disagreement to the Council for settlement shall
demonstrate that negotiations to settle the disagreement have taken place
between the parties but were not successful. 10 Also, at any stage of the
proceedings, the Council may invite the parties in dispute to engage in direct
negotiations in order to settle the dispute or to narrow the issues. 11 Moreover, in
order to facilitate the negotiations, the Council may designate an individual or a

7 Ibid at 199.
8 ICAO, Rules for the Settlement of Differences, ICAO Doc 7782/2. These Rules of Procedures were
adopted in 1957, and revised in 1975.
9 Hingorani, supra note 4 at 24.
10 Article 2 g), Rules.
11 Article 14 (1), Rules.

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 SETTLEMENT OF DISPUTES AT ICAO AND SUSTAINABLE DEVELOPMENT

group of individuals to act as conciliators between the parties. 12 According to

Professor Milde, this clearly departs from judicial functions because it promotes
mediation and conciliation by the Council as well as allowing for the good offices
of the President. 13 Therefore, as argued by Professor Buergenthal, the main task
of the Council under article 84 of the Chicago Convention is “to assist in settling
rather than in adjudicating disputes”. 14

Another interesting aspect of the Rules is the fact that they are closely
aligned with the Rules of the Court of International Justice. This similarity may to
some extent create certain problems, 15 as the ICJ is a judicial body and operates
strictly as a tribunal. Therefore, the Rules adopted by the Council may not be
adapted for a political body that does not operate according to the traditions of a
court of justice. 16 The Rules were first adopted in 1957 and subsequently
amended in 1975, but have not been modified since then. To this end, some have
recently argued in favor of a review of these Rules by the Council, which could
potentially be a good opportunity to take into account the political specificity of
this organ. 17

IV. JURISDICTION OF THE ICAO COUNCIL OVER THE

SETTLEMENT OF DISPUTES

The Council can adjudicate legal disputes concerning the interpretation

and the application of the Chicago Convention. Since the entry into force of the
Chicago Convention, they have been five disputes under Article 84. Apart from
its mandate for the settlement of disputes, the Council, by virtue of Article 66 of
the Chicago Convention, has also jurisdiction over the settlement of disputes
under the International Air Services Transit Agreement 18 and the International Air
Transport Agreement. 19 Moreover, the Council has been entrusted by the
Assembly, during its First Session in 1947, to act as an arbitral body for disputes
arising among contracting States relating to international civil aviation matters,
when expressly requested to do so by all parties to such dispute. 20 A number of

12 Article 14 (3), Rules.

13 Michael Milde, "Dispute Settlement in the Framework of the International Civil Aviation
Organization (ICAO)" in Karl-Heinz Böckstiegel, ed, Settlement of Space Law Disputes: the
Present State of the Law and Perspectives of further Development: Proceedings of an
International Colloquium, Munich, 13 & 14 September 1979 (Cologne: Heymann, 1980) 87 at 89.
14 Buergenthal, supra note 4 at 136.
15 Milde, supra note 4 at 197.
16 Ibid.
17 See for example Jon Bae, “Review of the ICAO Dispute Settlement Mechanism” (2013) 4:1 JIDS
65 at 81.
18 International Air Services Transit Agreement, 7 December 1944, 84 UNTS 389, 59 Stat 1693, TIAS
No 487.
19 International Air Transport Agreement, 7 December 1944, 171 UNTS 387, 59 Stat 1701, TIAS No
488.
20 ICAO Assembly Resolution A1-23. Nevertheless, we should note that since the entry into force

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 OCCASIONAL PAPER SERIES IV

early bilateral agreements designated the ICAO Council as their dispute

settlement body in case of any infringement by a party to such agreement. 21
Today, bilateral air agreements have largely abandoned any reference to the
ICAO Council in its capacity of adjudicatory forum; 22 Most disputes under
bilateral agreements are now resolved through arbitration. 23 The Council also
has the duty to report to the Assembly any violation of the Chicago Convention
as well as to consider any matter relating to the Convention which any
contracting State refers to it. 24 Finally, at the request of any contracting State, the
Council may investigate any situation which may appear to present avoidable
obstacles to the development of international air navigation. 25

V. CASES REFERRED TO THE ICAO COUNCIL

Five cases have been brought to the attention of the Council under Article
84 of the Chicago Convention. 26 The first dispute occurred in 1952 and was
between Indian and Pakistan with respect to the interpretation and application of
the Chicago Convention. 27 India made an application before the Council but the
dispute was eventually settled by negotiation between the parties. The second
dispute between the United Kingdom and Spain took place in 1967 and dealt
with the Spanish ban on overflight of the approaches to Gibraltar. 28 The case was
brought to the Council but the parties subsequently requested the Council in
1969 to defer the dispute sine die. 29 The third case arose in 1971 and involved
again Pakistan and India following the suspension by India of all overflight of
Indian territory by Pakistani aircraft. 30 India submitted preliminary objections to

of the Chicago Convention, no dispute was ever referred to the Council for arbitration under the
terms of such resolution. See Milde, supra note 4 at 197.
21 Dempsey, supra note 4 at 702-03.
22 Ibid at 702. Also, we should mention that certain States even proposed at the 6th Air Transport
Conference an electronic arbitration as a means of dispute settlement mechanism for bilateral
agreements (see ATConf/6-WP/42).
23 To this end, certain agreements could designate the President of the ICAO Council to assist for
the designation of arbitrator.
24 Article 54 j), Chicago Convention.
25 Article 55 e), Chicago Convention.
26 For a summary of each of the cases see Milde, supra note 4 at 200 ff and Dempsey, supra note 4
at 703 ff. For the list of the Council documents with respect to each cases see Ludwig Weber,
International Civil Aviation Organization (The Netherlands: Kluwer, 2012) at 53-54.
27 Cheng, supra note 4 at 101ff; Buergenthal, supra note 4 at 137; Frederick Tymms, “Le différend
Inde-Pakistan” (1953) 16 Rev Gen Air 207.
28 Milde, supra note 4 at 201-02; Weber, supra note 26 at 53.
29 ICAO, Annual Report of the Council to the Assembly for 1969 (Doc 8869 A18-P/2 June 1970).
30 Gerald F Fitzgerald, “The Judgement of the International Court of Justice in the Appeal
Relating to the Jurisdiction of the ICAO Council” (1974) 12 Can YB Int’l L 153; Terry L Albertson,
“Appellate Jurisdiction of the International Court of Justice - Jurisdiction of the Council of the
International Civil Aviation Organization” (1973) 14 Harv Int’l LJ 612; Kay Hailbronner,
“Jurisdiction of the ICAO Council Case” in Rudolf Bernhardt, ed, Encyclopedia of International Law,
vol 2 (Amsterdam: North Holland, 1981) at 161; Pierre-Michel Eisemann, “L’arrêt du 18 août 1972
en l’affaire de l’appel concernant la competence du Conseil de l’OACI (Inde c. Pakistan)” (1972)
18 AFDI 284; Aleth Manin, “Appel concernant la compétence du Conseil de l’OACI” (1973) 19

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 SETTLEMENT OF DISPUTES AT ICAO AND SUSTAINABLE DEVELOPMENT

the Council denying its jurisdiction. Following their rejection by the Council,
India lodged an appeal to the ICJ, which confirmed the Council’s decision. This
case was finally settled in 1976 following a joint statement by the parties
announcing the discontinuance of the proceedings. 31 The fourth case was
brought to the Council in 1998. 32 At that time, the United States denied Cuban
aircraft the right to fly over its territory towards Canada. After the hearings of
the parties, the President of the Council acted as Conciliator and the parties
reached an agreement. 33 The most recent dispute brought to the Council
occurred in 2000 and was between the United States and fifteen EU member
States. 34 The issue related to the application of an EU Directive on the noise of
aircraft engines, also known as the “hushkit Regulation”. The application of this
regulation would have had the consequence of denying almost all US carriers to
fly their older aircraft into the EU. 35 The fifteen EU States submitted a
preliminary objection concerning the jurisdiction of the Council. 36 This objection
was rejected by the Council and the parties proceeded with the hearing on the
substance. 37 The Council then decided to appoint the President as a Conciliator
and the case was finally settled when the EU repealed its initial Regulation and
adopted a Directive which satisfied both Parties. 38

The Council has never issued a decision on the merits. 39 It seems that at
every occasion, mediation as well as the use of the good offices of the President
of the Council contributed to resolving the dispute. 40 The fact that the machinery
set out in Chapter XVIII of the Chicago Convention has not been able to produce
over the years a decision on the merits is certainly one of the main reasons why
many authors believe that this mechanism is a “failure”. 41 On the contrary, other
authors believe that the incapacity of the Council ever to render a final
adjudication does not necessarily indicate that the machinery under Chapter

AFDI 290; Jacques Huntzinger, “L’affaire de l’appel concernant la compétence du Conseil de

l’OACI devant la Cour international de Justice (arrêt du 18 août 1972)” (1974) 78 RGDIP 975.
31 Milde, supra note 4 at 203.
32 Ibid at 203-04; Dempsey, supra note 4 at 709-10.
33 Ibid.
34 Milde, supra note 4 at 204; Dempsey, supra note 4 at 711; Benedicte A Claes, “Aircraft Noise
Regulation in the European Union: the Hushkit Problem” (2000) 65 J Air L & Com 329; Kriss E
Brown, “The International Civil Aviation Organization is the Appropriate Jurisdiction to Settle
Hushkit Dispute Between the United States and the European Union” (2002) 20 Penn St Int’l L
Rev 465; Report on Economic Law on The Admissibility of U.S.-EU ‘Hushkits’ Dispute Before the
ICAO (2001) 95 Am J Int’l L 410.
35 Milde, supra note 4 at 205.
36 Ibid.
37 Ibid.
38 Weber, supra note 26 at 53.
39 Milde, supra note 4 at 200.
40 Dempsey, supra note 4 at 736-37.
41 Milde, supra note 4 at 200. See among others Gabriel S Sanchez, “The Impotence of the Chicago
Convention Dispute Settlement Provisions” (2010) 10 Issues Av L & Pol’y 27.

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 OCCASIONAL PAPER SERIES IV

XVIII of the Chicago Convention is inefficient. 42 According to these authors the

inability for the Council to render decisions on the merits demonstrates that
States prefer to settle their aviation disputes through the channel of diplomacy
rather than adjudication. 43 In fact, it is probably more advantageous for States to
settle their dispute through negotiation rather than letting the Council decide for
them. 44 Also, except for the “hushkit case”, the disputes brought to the Council
under Article 84 of the Chicago Convention were bilateral in nature and
concerned rights of overflight in restricted areas. Moreover, as pointed out by
Professor Milde, even if those disputes were related to overflight rights, their
“centre of gravity” was in fact political in nature and their nature was often
external to aviation. 45 In fact, the “hushkit case” was the only one clearly dealing
with environmental protection and is the only one which may provide guidance
on how the ICAO Council would deal with a comparable dispute arising in the
future.

VI. THE PERFORMANCE OF QUASI-JUDICIAL FUNCTIONS

BY THE ICAO COUNCIL

In theory, when the Council is performing the duties set out under
Chapter XVIII of the Chicago Convention, it “must consider itself an
international judicial organ and act in accordance with rules of international law
governing judicial proceedings. Thus, inter alia, members of the Council, even
though they may be national representatives nominated by Governments must,
[…] act in an impartial and judicial capacity.” 46 However, it seems that in
practice, the Council does not act as impartially and judicially as the statement
above suggests. Since the signature of the Chicago Convention in 1944, a
number of authors have raised concerns with respect to the judicial functions of
the ICAO Council. 47 These concerns are related to the fact that Council Members
are neither necessarily independent nor always qualified in order to perform a
judicial duty. The Council is composed of thirty-six sovereign States elected by
the Assembly. 48 The Representatives are nominated by their States as diplomatic
agents rather than independent experts - unlike the Air Navigation
Commissioners. 49 Therefore, Council Members are not independent per se. 50 In

42 Richard N Gariepy and David L Botsford, “The Effectiveness of the International Civil
Aviation Organization’s Adjudicatory Machinery” (1976) 42 J Air L & Com 351 at 357-58.
43 Ibid at 358.
44 Sanchez, supra note 41 at 31.
45 Milde, supra note 4 at 203.
46 Cheng, supra note 4 at 101.
47 See among others Daniel Goedhuis, “Question of Public International Air Law” (1952) 81 Rec
des Cours 201 at 223-24;
48 Article 50 a), Chicago Convention.
49 The Air Navigation Commission is the technical organ of ICAO. Its principal function under
article 57 of the Chicago Convention is to consider amendments or modifications to the Annexes
to the said Convention and to recommend them to the Council. See Weber, supra note 26 at 38.

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 SETTLEMENT OF DISPUTES AT ICAO AND SUSTAINABLE DEVELOPMENT

opposition to ICJ judges, who are bound by their oath of office to act
independently, the Council Members, when they adjudicate disputes decide on
the basis of the interests of their own State and most likely following precise
instructions. 51 For example, during the hearing of the second case Pakistan v.
India (1971) a number of Representatives requested the postponement of a vote,
in order to seek instructions from their respective administrations. 52 Council
Members are appointed by their governments based on their expertise in the
field of civil aviation. 53 The Chicago Convention itself only stipulates that no
Representative shall be actively associated with the operation of an international
air service or have any financial interest in such service. 54 Consequently, the
academic and professional background of the representatives is diverse and most
of them are not necessarily lawyers by trade nor have exercised any judicial
functions prior to their appointment. The ability of the Members of the Council
to fully assume their judicial functions and render proper decisions based on the
applicable law is therefore questionable. 55

Nevertheless, we should mention that despite its apparent lack of

independence, the Council has not faced any serious criticism caused by its
absence judicial capacity over the years. 56 One explanation given by an author is
that most cases brought before the Council were very specific, localized and they
concerned bilateral disputes. 57 Consequently, the Council was able to be seen as
neutral and, to a certain extent, able to preserve its independence. Finally,
considering the appeal mechanism that exists at the ICJ, a decision apparently
unreasonably taken by the Council could be reversed on appeal. 58

Clearly any decision taken by the Council following a demand under

Article 84 of the Chicago Convention would most likely be based largely on
political grounds. We can certainly question whether such a method of
adjudicating disputes is fit for our purpose in the present context. In fact, the first
president of the ICAO Council, Dr. Edward Warner was already of the opinion
in 1945 that “no international agency composed of representatives of States could
be expected to bring judicial detachment to the consideration of particular cases
in which large national interests were involved.” 59

50Milde, supra note 4 at 199.

51Ibid.
52Council Minutes 29 July 1971, (C-Min. 74/6).
53Milde, supra note 4 at 199; Dempsey, supra note 4 at 734.
54Article 50 c), Chicago Convention.
55Dempsey, supra note 4 at 734.
56Bae, supra note 17 at 71.
57Ibid.
58Ibid.
59Edward Warner, “The Chicago Air Conference Accomplishments and Unfinished Business”
(1945) 23:3 Foreign Affairs 406 at 415.

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VII. THE CONSIDERATION OF ENVIRONMENT AND

SUSTAINABLE DEVELOPMENT BY THE ICAO
COUNCIL

Under Article 2.2 of the Kyoto Protocol, 60 States shall pursue limitation of
greenhouse gases emission (GHG) by working through ICAO. Nevertheless,
ICAO does not consider that the said provision grants a mandate to the
Organization to act specifically on that matter. 61 In fact, as correctly pointed out
by Professor Dempsey, a literal reading of the Kyoto Protocol suggests that only
certain States are obliged to address the issue of GHG emissions from
international aviation. 62 In fact, ICAO is not bound under the Chicago
Convention or the Kyoto Protocol to develop a policy with respect to GHG
emissions but is also not precluded from doing so. 63 ICAO is viewed as a forum
where States can discuss any such issues. 64 Without any desire of its Member
States, ICAO does not have a specific obligation to consider such a matter.
Nevertheless, the signature of the Kyoto Protocol seems to have been the starting
point for the ICAO Assembly to take actions in order to trigger the issue of
aviation and climate change. 65 To this end, a review of ICAO Assembly
Resolutions since 1998 certainly demonstrates the political will of Member States
to tackle that subject. 66

Furthermore, the recent agreement reached at the Conference of the

Parties in Paris in December 2015 (COP21) does not make any reference to civil
aviation or ICAO. In fact, the preliminary paragraph on aviation was
surprisingly removed completely from the final agreement. 67 However, the
absence of aviation in the final agreement will most likely have little impact on
the ICAO process. Indeed, according inter alia of the representative of ATAG, the
momentum created at Paris will continue to put pressure on States at ICAO to
address aviation emissions through the implementation of a distinct MBM

60 Protocol to the United Nations Framework Convention on Climate Change, signed 11 December 1997,
UN Doc FCCC/CP/1997/7/Add.1, entered into force 16 February 2005.
61 Alejandro Piera, Greenhouse Gas Emissions from International Aviation (The Hague: eleven
international publishing, 2015) at 44.
62 Dempsey, supra note 4 at 450.
63 Such opinion has been argued inter alia by the former Director of the ICAO Legal Bureau, Mr.
Denys Wibaux. “The text under consideration, if combined with the Chicago Convention, could
be interpreted to indicate that there was no legal obligation for ICAO to develop a policy or rules
in respect of aviation GHG emissions, nor was there obviously any legal obstacle, either in the
UNFCCC, the Kyoto Protocol or the Chicago Convention, to ICAO developing policies or rules
aimed at reducing aviation GHG emissions.” See C-MIN 181/21 at p 256, para 22.
64 Piera, supra note 61 at 44
65 Ibid.
66 Ibid at 44-45, n 17.
67 See UNFCCC, Proposal by the President, Paris Agreement, 12 December 2015, online:
<https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf>.

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 SETTLEMENT OF DISPUTES AT ICAO AND SUSTAINABLE DEVELOPMENT

scheme. 68

Furthermore, according to a preliminary version of the draft agreement

which will be discussed at the Conference of the Parties in Paris in December
2015 (COP21), it seems that the Parties are going to adopt a text that is similar to
the provisions of the Kyoto Protocol regarding the obligation of ICAO towards
GHG emissions from international aviation.69

Also, we should mention that the Chicago Convention does not include
any provision with respect to environmental protection and sustainable
development.70 Therefore, a potential dispute with respect to the implementation
of the EU-ETS could certainly lead to some questions regarding inter alia the
jurisdiction of the Council to handle such matters under Article 84 of the said
Convention. In fact, the Council has jurisdiction with respect to the
“interpretation and application” of the Chicago Convention. 71 To this end, as the
issue of the EU-ETS mostly consists of assessing its compatibility with the
Chicago Convention and the Kyoto Protocol, the Council would not seem
qualified to handle any matters dealing with the second instrument. 72 Therefore,
the questions covered by the Memorial of the plaintiffs would dictate the
Council’s jurisdiction or non-jurisdiction to hear the case.

Nevertheless, it would be highly unlikely for the Council would not to

take into consideration the principles of environment and sustainable
development while examining a potential application with respect to the
unilateral implementation of the EU-ETS. In fact, environmental protection is one
of the five strategic objectives of the Organisation and to refuse such
consideration would be against certain ICAO Assembly Resolutions adopted
within the past decades. 73 Also, as a great number of States elected on the
Council are also Parties to the Kyoto Protocol, it will be to a certain extent

68 Green Air Online, “COP21 President says growing emissions from aviation and shipping
sectors must be tackled this year”, 22 January 2016, online:
<http://greenaironline.com/news.php?viewStory=2188>.
69 Draft agreement and draft decision on workstreams 1 and 2 of the Ad Hoc Working Group on
the Durban Platform for Enhanced Action, Ad Hoc Working Group on the Durban Platform for
Enhanced Action, Second session, part eleven 19-23 October 2015 Bonn, Germany, version of 23
October 2015 @ 23h30, online: UNFCCC
<http://unfccc.int/files/bodies/application/pdf/ws1and2%402330.pdf>.
70 See Brian F Havel & Gabriel S Sanchez, The Principles and Practice of International Aviation Law
(New York: Cambridge University Press, 2014) at 228.
71 Bae, supra note 17 at 79.
72 Ibid.
73 See ICAO Assembly Resolutions, A32-8; A33-7; A35-5; A36-22; A37-19 and A38-18. See also
Piera, supra note 61 at 44-45, note 17. Moreover, taking urgent actions to combat climate change
and its impact is one of the United Nations Sustainable Development Goals. To this end, as a UN
agency, ICAO is already involved in a number of activities in order to contribute to tackle the
established targets. See ICAO, “ICAO and the United Nations Sustainable Development Goals”,
online: ICAO < http://www.icao.int/about-icao/aviation-development/Pages/SDG.aspx>.

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 OCCASIONAL PAPER SERIES IV

contradictory for States to adopt a position in one fora and to do the opposite in
another

VIII. EXAMPLES OF LEGAL PROCEEDINGS WHICH

COULD BE INITIATED AGAINST THE EU

In the event that a dispute occurs in the coming years in the field of
sustainable development and environmental protection, it is most likely that
certain States will challenge EU measures in all appropriate fora. For example,
prior to the 38th session of the Assembly, several States expressed their
objections to the EU Directive on ETS through various statements, actions or
even lawsuits. 74 One of the most important one being the Joint Declaration of the
Moscow Meeting on Inclusion of Civil Aviation in the EU-ETS adopted in Moscow in
February 2012. 75 This declaration gives an idea of the range of actions which
could possibly be taken by States wishing to avoid the EU measures. 76 This
declaration was affirmed prior to the 38th session of the ICAO Assembly. Since
the Assembly adopted a resolution on the eventual establishment of global
market based measures, the declaration is now obsolete. However a range of
measures were threatened to stop the EU from moving forward with its EU-ETS.
The first suggested measure was to file an application to the ICAO Council under
Article 84 of the Chicago Convention.77

IX. THE AMBIGUOUS STATUS OF THE EU AT ICAO

74 For a list of the principal reactions to the EU-ETS see Pablo Mendes de Leon, “Enforcement of
the EU ETS: The EU’s Convulsive Efforts to Export its Environmental Values” (2012) 37 286 at 292
ff; Piera, supra note 61 at 135 ff.
75 Joint Declaration of the Moscow Meeting on Inclusion of Civil Aviation in the EU-ETS, 22 February
2012, online: Green Air Online
<http://www.greenaironline.com/photos/Moscow_Declaration.pdf > [Moscow Declaration].
The Moscow Declaration has been supported by Armenia, Argentina, Republic of Belarus, Brazil,
Cameroon, Chile, China, Cuba, Guatemala, India, Japan, Republic of Korea, Mexico, Nigeria,
Paraguay, Russian Federation, Saudi Arabia, Seychelles, Singapore, South Africa, Thailand,
Uganda and the United States.
76 Ibid at Attachment A.
77 1) Filing an application under Article 84 of the Chicago Convention for resolution of the
dispute according to the ICAO Rules for the Settlement of Differences (Doc 7782/2); 2) Using
existing or new State legislation, regulations, or other legal mechanism to prohibit
airlines/aircraft operators of that State from participating in the EU ETS; 3) Holding meetings
with the EU carriers and/or aviation-related enterprises in their respective States and apprise
them about the concerns arising out of the EU-ETS and the possibility of reciprocal measures that
could be adopted by the State, which may adversely affect those airlines and/or entities. 4)
Mandating EU carriers to submit flight details and other data; 5) Assessing whether the EU ETS is
consistent with the WTO Agreements and taking appropriate action; 6) Reviewing Bilateral Air
Services Agreements, including Open Skies with individual EU Member States, and
reconsidering the implementation or negotiation of the ‘Horizontal Agreement’ with the EU; 7)
Suspending current and future discussions and/or negotiations to enhance operating rights for
EU airlines/ aircraft operators; 8) Imposing additional levies/charges on EU carriers/ aircraft
operators as a form of countermeasure; and 9) Any other actions/ measures.

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 SETTLEMENT OF DISPUTES AT ICAO AND SUSTAINABLE DEVELOPMENT

Currently, the EU has only an ad hoc observer status at ICAO. In law, the
EU could not accede to the Organization due to the provisions of the Chicago
Convention with respect to membership, 78 which only allow sovereign States to
become members. 79 To complicate matters, a recent judgment of the European
Court of Justice (ECJ) affirmed that the EU is not bound by the Chicago
Convention since it is not a party. 80 A potential application under article 84 of the
Chicago Convention opposing an EU measure would have to be taken against all
EU Member States as was done in 2000 for the “hushkit case”. 81 Therefore, even
if the status of the EU remains an exception at ICAO, it seems that EU Member
States will have to answer for their actions pursuant to EU decisions.

X. MEANS OF RESOLVING A POTENTIAL DISPUTE WITH

RESPECT TO THE EU-ETS BEFORE THE COUNCIL

If dispute arises involving an EU ETS scheme it is most likely that the

Council will handle the matter similar to the Hushkit case. 82 The Council would
certainly first seek mediation and conciliation rather than adjudication, 83 and
would encourage negotiations at different stages of the proceedings. 84 It is also
foreseeable that the President of the Council might at some point during the
potential proceeding be designated as a Conciliator among the parties. 85

If the EU were to proceed again with unilateral enforcement of its ETS, the
ensuing dispute would have worldwide implications. Consequently, it is
questionable how any State Member of Council would be able to act impartially
in such case. To this end, EU States would possibly be tempted to submit a
counter claim intended to deprive non EU States not party to the dispute of their

78 See Armand de Mestral and Mathieu Vaugeois, “La reconnaissance de l’Union européenne à
l’Organisation de l’aviation civile internationale: une perspective canadienne”, Policy Brief Series,
Canada-Europe Transatlantic Dialogue, Carleton University, Ottawa, May 2015, online :
<http://labs.carleton.ca/canadaeurope/wp-content/uploads/sites/9/Vaugeois-policy-paper-
20152.pdf>
79 Article 92, Chicago Convention.
80 CJEU Case 366/10 Air Transport Association of America (ATA) and US airlines v. the UK
Secretary of State for Energy and Climate Change, 21 December 2011. See Brian F Havel, and John
Q Mulligan, “The Triumph of Politics: Reflections on the Judgment of the Court of Justice of the
European Union Validating the Inclusion of Non-EU Airlines in the Emissions Trading Scheme”
(2012) 37:1 Air & Space L 3; Pablo Mendes de Leon, “Enforcement of the EU ETS: The EU’s
Convulsive Efforts to Export its Environmental Values” (2012) 37:4-5 Air & Space L 287.
81 Pietro Manzini & Anna Masutti, “The Application of the EU ETS System to the Aviation Sector:
From Legal Disputes to International Retaliations” (2012) 37 Air & Space L 307 at 313, note 13.
82 Bae, supra note 17 at 78.
83 Dimitri Maniatis, “Conflict In the Skies: The Settlement of International Aviation Disputes”
(1995) 20 Ann of Air & Sp L 167 at 192-93.
84 Article 14 (1), Rules.
85 Maniatis, supra note 83 at 191.

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 OCCASIONAL PAPER SERIES IV

voting rights, due to their indirect implication in the dispute. 86 If such claim
succeeded, it would affect the quorum needed to allow the Council to take a
decision. 87 It would also be argued that other States members of Council would
be at the same time judge and indirectly party to the dispute. Moreover, certain
States could be viewed in the judicial process as already bias due inter alia to
their signature in 2012 of the Moscow Declaration. One could even argue that all
non EU States flying to and from the EU are equally situated, and therefore
“Parties” to the dispute. Unfortunately no provisions exist in the Chicago
Convention with respect to the appearance of impartiality of States while
performing their duties under Article 84. 88 Therefore, as pointed out by Dr. Jon
Bae, a preliminary objection of the EU with respect to the lack of impartiality of
the Council might well be not successful. 89

XI. CONCLUSION

Despite all the obstacles, it appears that the dispute settlement mechanism
which is set out at Article 84 of the Chicago Convention could still certainly be
invoked in a potential dispute in the field of sustainable development and
environmental protection. As demonstrated, it seems that a dispute involving a
large number of States would be somewhat different from previous cases, which
were regional and bilateral in nature. Nevertheless, this dispute settlement
mechanism remains relevant and appropriate for a highly political dispute such
as the one of the EU-ETS, where conciliation and mediation will be prioritized.
The procedural hurdles are considerable. Equally uncertain is the willingness of
members of the ICAO Council to base their decision on principles of sustainable
development. The Chicago Convention does not require this result but equally it
need not frustrate the recourse to evolving standards of environmental
protection.

86 Bae, supra note 17 at 79.

87 Article 52 of the Chicago Convention stipulates that “Decisions by the Council shall require
approval by a majority of its members”. See Bae, supra note 17 at 79.
88 Bae, supra note 17 at 78.
89 Ibid.

13
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